Anastasia Bagalika
Ihor Kotelyanets
Labour rights of illegally detained civilians — a legal perspective
We spoke with Yulia Polekhina, a lawyer associated with the Sich Human Rights Group, about the labor rights of civilians unlawfully detained by Russia. This includes discussing their right to retain their jobs and receive compensation.
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Illustrative photo from open sources
About keeping your job
Yulia Polekhina: The protection of labor rights for illegally detained civilians after February 24, 2022, is enshrined in the Labour Code, among other legislative acts. This is covered under our Article 119, which provides guarantees for employees.
It states that a person who, in accordance with the Law of Ukraine on Social and Legal Protection of Persons, has been confirmed to be deprived of personal liberty, retains their job for the entire period of deprivation. An additional 6 months from the date of release is also provided if the person undergoes medical or other rehabilitation activities, including psychological assistance. These activities may include various restorative measures established by the Cabinet of Ministers of Ukraine.
It must be confirmed that the person was illegally detained as a result of the aggression of the Russian Federation against Ukraine. This applies to people who are officially employed. For those who are not officially employed, the process will be longer. It is necessary to establish through the court the existence of labor relations with the institution or organization where they worked.
Suspension of an employment contract
Yulia Polekhina: Under martial law, the concept of an employment contract was introduced. This involves a temporary suspension of the employer’s obligation to provide employment to the employee and a temporary suspension of the employee’s obligation to perform their work under officially concluded employment contracts. An employment contract may be suspended for reasons that make it impossible to provide and perform work. It must be a bilateral process.
If a person is under occupation and the enterprise is relocated to territory controlled by the Ukrainian authorities, the employer cannot provide the person with the opportunity to continue performing their duties. In such cases, the employment contract is suspended. However, the suspension of an employment contract does not terminate the employment relationship.
The employer’s right is not absolute. It cannot be used as any form of coercion or, for example, revenge. This is a temporary cessation of employment by the employer and a temporary cessation of work by the employees in connection with the armed aggression of the Russian Federation against Ukraine. There are many reasons for this, such as active hostilities in a locality, temporary occupation, proximity to a war zone, destruction of production facilities or certain equipment, or the absence of an employee who is abroad or in the occupied territory when enterprise is relocated.
The desire of one party, in the absence of objective circumstances, is not a ground for suspending an employment contract. If a person simply does not want to work, this is not a valid reason for suspension.
Both the employee and the employer can initiate the suspension. This may be done through electronic communications. For example, the employer may send the agreement by email. The suspension of an employment agreement is valid for a period not exceeding the duration of martial law.
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«Got fired in violation of the law» — what to do?
Yulia Polekhina: The employee must go to the company, report that they have arrived, and inquire about the status of their workplace. If they are told that they have been fired, they should request reinstatement.
These issues can be resolved out of court. I have never encountered a case where a company did not want to resolve it. It is usually sufficient for a person to go to their employer and submit an application for reinstatement. The employer then reinstates them.
About the salary
Yulia Polekhina: The issue of wages is more problematic. The employer must record the salary that the employee should have received for the period they did not work due to the occupation or detention. However, this financial support must be paid by the aggressor state.
That is, a person can apply for reinstatement. When they perform their job duties, they will receive their salary. As for the period of forced absence, this is a matter for the aggressor state.
There is only one category of citizens for whom it is stated that the company should pay this. These are citizens who went missing under special circumstances, but who were authorized to perform state functions at the time of their disappearance or detention. These include starostas, local self-government bodies, executive authorities, and other positions. Such persons retain their place of work, position, and average salary
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Should the company try t0 find out what happened to their employee
Yulia Polekhina: There is such an obligation. It is businesses that are obliged to keep records. If a person goes missing and the business is unaware of their whereabouts (for instance, if they relocated their company from Mariupol), they must maintain a record of this.
Of course, they are not obliged to find out what is happening to that person. They cannot know that. If it’s a small company with a people-oriented approach, they may be able to gather information through the person’s relatives, if such information is available.
According to the Criminal Code, any individual or legal entity can file a complaint with the police. We do not know whether the missing person has any relatives. The company has the right to contact the police. We can inform them that, for example, a person from the city of Mariupol is unreachable.
First, they will fulfill their civic duty. If a person has disappeared and someone has already reported it, the cases will be merged.
On establishing the fact of illegal detention
Yulia Polekhina: We cannot establish the fact of illegal detention in court, as there is a pre-trial procedure in place. This involves a commission tasked with determining the deprivation of personal liberty resulting from the armed aggression of the Russian Federation against Ukraine. The court cannot assume responsibility for establishing this fact, as it falls within the purview of the commission. Our recourse lies in filing a lawsuit against the commission if they fail to establish this fact.
Is there a possibility to receive financial compensation?
Yulia Polekhina: There is a practice of suing Russia. For instance, there is a decision from the Pechersk District Court of Kyiv, where the court ruled to recover compensation for property and non-pecuniary damage from the Russian Federation in favor of the individual. These decisions are legally binding and enforceable. They are not merely filed away; rather, everything will proceed through recourse lawsuits later on.
A commission is already being established to facilitate the transfer of certain seized assets of Russian citizens. It is necessary to apply to Ukrainian courts for the recognition of, for example, forced absences.
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In times of war, the program «Free our relatives» tells the stories of people, cities, villages, and entire regions that have been captured by Russian invaders. We discuss the war crimes committed by the Kremlin and its troops against the Ukrainian people.
The program is hosted by Ihor Kotelyanets and Anastasia Bagalika.
This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union. Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government. The contents are the responsibility of the authors.
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